Reinkey v. Wilkins

172 Wis. 515 | Wis. | 1920

Rosenberry, J.

Two questions are presented upon this appeal: First, Did the court err in refusing to sustain the plea of the defendant to the effect that George Reinkey had’not authorized the commencement of the suit as to him? and second, Did the fact that there was a recovery for waste in the accounting had in the partition suit foreclose the claim of plaintiffs against the defendant for waste committed subsequent to the commencement of that action but before its trial? Although the question as to whether or not George Reinkey had authorized the commencement of the action was raised by the allegation in the answer instead of by a motion to dismiss, which is the proper procedure, we shall, in view of the fact that the matter was tried and disposed of by the trial court as if it had been a motion to dismiss, consider that question upon its merits. George Reinkey appeared in this suit by his attorney. The authority of an attorney to appear for a party is presumed in this state, and the burden of overcoming this presumption is upon the party making the denial. Thomas v. Steele, 22 Wis. 207; Schlitz v. Meyer, 61 Wis. 418, 21 N. W. 243; Andrews v. Thayer, 30 Wis. 228. Upon the trial the attorney appearing for the plaintiff confessed that he had no authority to appear for him excepting such as he had by reason of a request made that he so appear by Anna Reinkey, another plaintiff and á sister of the plaintiff George Reinkey. The only testimony offered to show the authority of Anna Reinkey to procure the appeárance of the attorney for George Reinkey was a conversation had with her brother some three or four years before. She testified that she was a sister of George Reinkey; that she last saw her brother about four years ago; that she had talked with him about his interest in his grandfather’s estate, consisting principally of the lands involved in the partition suit, and his rights therein; that he left his papers with her and asked her to look after his interests; that prior to that time there had been talk of commencing legal proceedings in respect thereto; that he was anxious to secure the money that was coming to him, and that her brother asked her to protect his interest in the proceedings the same as if he were present. The trial court held this sufficient to constitute Anna Reinkey 'the agent of George Reinkey for the purpose of procuring the appearance of an attorney to represent him in this action, and we are of the opinion that the trial court correctly ruled in so holding. Will of McGinty, 171 Wis. 184, 176 N. W. 850, was a very different case. There the attorneys for one Bagley -had not taken appeal within the time fixed by law. The question was whether the circuit court should, in the exercise of its discretion, extend the time. The trial court refused to extend the time, and this court held that in so doing the trial court did not abuse its discretion. It appears the decision of the trial court would have been the same even if the authority of Bagley’s attorneys had been admitted. ■ Second, it' is the contention of appellant that, because the plaintiffs failed to litigate the liability of the defendant for the acts of waste committed after the commencement :of the partition suit and before its trial, they are estopped from maintaining this action on the ground thaf the plaintiffs are concluded not'only as to all matters actually litigated upon the former trial but also upon all •matters which might have been litigáted therein, an accounting for. waste committed prior to commencement of the partition having been made in that action.

The rule upon this proposition is:

“A judgment is a complete bar in a subsequent action between the same parties, not only as to every point actually presented and decided in the former action, but also as to every point which might have been presented and decided therein when the second -action is upon the same cause of action; but when the second action is upon a different claim or cause of action, the former judgment is only a bar as to matters actually presented arid litigated therein.” Huntsicker v. Crocker, 135 Wis. 38, 115 N. W. 340; Rahr v. Wittmann, 147 Wis. 195, 132 N. W. 1107; Harrison v. Remington P. Co. 140 Fed. 385; S. C. 5 Am. & Eng. Ann. Cas. 314, and note.

The complaint in the partition suit contained no allegation whatever with reference to the matter of waste.' Sec. 3102, Stats., provides what the complaint in a partition action shall state. No mention is made therein of waste. Sec. 3105, Stats., provides that:

“In all actions for partition the court may investigate and determine all questions of conflicting or controverted titles, quiet title, remove clouds in titles, assign dower and homestead, apportion incumbrances, adjust claims for improvements or for rents and profits; . . . ”

The claim of estoppel made here by the defendant must fail. First, the action for waste is upon a different cause of action; second, the issues are not identical; and third, it is conceded that the subject matter of this action was not in fact litigated in the former action.

■ A point or question is in issue in an action in such a sense that it will be concluded by the judgment therein when an issue concerning it is directly tendered by the pleading in the case. New Orleans v. Fisher, 180 U. S. 185, 21 Sup. Ct. 347; cases cited 23 Cyc. 1302, note 12. A matter is not in issue in an action which is neither pleaded nor brought into contest therein, although within the general scope of the litigation and although it might have been determined by the judgment if it had been set up and tried. Abendroth v. Van Dolsen, 131 U. S. 66, 9 Sup. Ct. 619; Montpelier S. B. & T. Co. v. School Dist. 115 Wis. 622, 92 N. W. 439; Wilson v. Hoffman, 93 Mich. 72, 52 N. W. 1037.

The pleadings in this case presented no issue whatever as to waste, and even had the pleadings presented an issue as to waste committed prior to the commencement of that action the plaintiffs would not have been concluded as to this cause of action, which arose after the commencement of the former action, unless it had in fact been litigated in the former action. The trial court correctly held that the plaintiffs were not estopped.

By the Court. — Judgment affirmed;